Canada (Minister of Citizenship and Immigration) v. Bayani, 2015 FC 670

• Judge: LeBlanc, J.
• Court: Federal Court (Canada)
• Case Date: November 13, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 670;(2015), 481 F.T.R. 276 (FC)

Can. (M.C.I.) v. Bayani (2015), 481 F.T.R. 276 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JN.018

The Minister of Citizenship and Immigration (applicant) v. Narges Bayani (respondent)

(T-2117-13)

The Minister of Citizenship and Immigration (applicant) v. Niloufar Bayani (respondent)

(T-2-14)

The Minister of Citizenship and Immigration (applicant) v. Khadijeh Nezam-Mafi (respondent)

(T-3-14; 2015 FC 670)

Indexed As: Canada (Minister of Citizenship and Immigration) v. Bayani

Federal Court

LeBlanc, J.

May 22, 2015.

Summary:

A citizenship judge granted the citizenship applications of a mother and two sisters from Iran (the respondents). The Minister of Citizenship and Immigration appealed, arguing that the judge (1) failed to articulate which of the three residency tests he used; (2) erred when he concluded that the respondents had satisfied the residency requirement set out in s. 5(1)(c) of the Citizenship Act; and (3) failed to provide adequate reasons for his decisions.

The Federal Court allowed the appeals and referred the matter back to a decision-maker for redetermination.

Aliens - Topic 2510

Naturalization - General - Duties of citizenship judge (incl. duty to give reasons) - A citizenship judge granted the citizenship applications of two sisters from Iran - The Minister of Citizenship and Immigration appealed, arguing that the judge failed to articulate which of the three residency tests he used - The sisters submitted that it was clear the judge had conducted a qualitative assessment of their applications where it was obvious from the outset that they had not been physically present in Canada for the minimum threshold contemplated by s. 5(1)(c) of the Citizenship Act - The Federal Court allowed the appeals - Even assuming that it could be inferred from the judge's notes that he did not apply the physical presence test, there was nothing in those notes that indicated which of the two qualitative tests was applied - In the case of one of the sisters, the judge found that she had 1033 days of physical presence when the record showed that she only had 728 days - Given that physical presence was a factor of primary importance even in a qualitative analysis, the decision to approve the application was unreasonable as it failed to explain why the sister satisfied the residency requirement despite spending that much time outside of Canada - The judge's reasons were wholly inadequate - See paragraphs 28 to 36.

Aliens - Topic 2510

Naturalization - General - Duties of citizenship judge (incl. duty to give reasons) - A citizenship judge granted the citizenship application of Nezam-Mafi, an Iranian citizen - The Minister of Citizenship and Immigration appealed, arguing that the judge failed to articulate which of the three residency tests he used - Nezam-Mafi submitted that it was clear from the judge's notes that he applied the physical presence test because he referred to the fact that she had 1,110 days of physical presence in Canada during the relevant period - The Federal Court allowed the appeal - It was unclear which test the judge used given that he also referred to qualitative factors by noting that Nezam-Mafi was retired, married to a Canadian citizen, and resided with her daughters in Montreal and Waterloo - Even if it could be inferred that the physical presence test was used, two problems remained - First, there was no discussion in the judge's decision or notes concerning the contradictory explanations that Nezam-Mafi gave about the non-availability of a missing passport - The missing passport was of material importance because it covered half of her residency period - The judge failed to provide clear and detailed reasons which demonstrated that all relevant facts had been considered - Second, the judge placed too much reliance on the Integrated Customs Enforcement System report - This report only recorded entries into Canada and was not free from error - There was no indication that the judge verified when Nezam-Mafi left and returned from the trips she took during her residency period - See paragraphs 37 to 45.

Aliens - Topic 2511

Naturalization - General - Evidence - [See second Aliens - Topic 2510 ].

Aliens - Topic 2525

Naturalization - Qualifications - Residence - [See both Aliens - Topic 2510 ].

Cases Noticed:

Saad v. Canada (Minister of Citizenship and Immigration) (2013), 433 F.T.R. 174; 2013 FC 570, refd to. [para. 17].

Canada (Minister of Citizenship and Immigration) v. Rahman (2013), 445 F.T.R. 32; 2013 FC 1274, refd to. [para. 17].

Balta v. Canada (Minister of Citizenship and Immigration) (2011), 403 F.T.R. 134; 2011 FC 1509, refd to. [para. 17].

Canada (Minister of Citizenship and Immigration) v. Baron (2011), 388 F.T.R. 261; 2011 FC 480, refd to. [para. 17].

Canada (Minister of Citizenship and Immigration) v. Diallo (2012), 424 F.T.R. 156; 2012 FC 1537, refd to. [para. 17].

Huang v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 276; 2013 FC 576, refd to. [para. 17].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

Sinanan v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 826; 2011 FC 1347, refd to. [para. 19].

Pourghasemi, Re (1993), 62 F.T.R. 122 (T.D.), refd to. [para. 20].

Papadogiorgakis, Re, [1978] 2 F.C. 208 (T.D.), refd to. [para. 21].

Koo, Re, [1993] 1 F.C. 286; 59 F.T.R. 27 (T.D.), refd to. [para. 22].

Paez v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 181; 2008 FC 204, refd to. [para. 22].

Pourzand v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 276; 2008 FC 395, refd to. [para. 24].

Xu v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 437; 2005 FC 700, refd to. [para. 24].

Rizvi et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. B28; 2005 FC 1641, refd to. [para. 24].

Olufemi Dina v. Canada (Minister of Citizenship and Immigration) (2013), 435 F.T.R. 184; 2013 FC 712, refd to. [para. 25].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 26].

Canada (Minister of Citizenship and Immigration) v. Saad (2011), 404 F.T.R. 9; 2011 FC 1508, refd to. [para. 26].

Canada (Minister of Citizenship and Immigration) v. Jeizan (2010), 386 F.T.R. 1; 2010 FC 323, refd to. [para. 30].

Canada (Minister of Citizenship and Immigration) v. Al-Showaiter, [2012] F.T.R. Uned. 140; 2012 FC 12, refd to. [para. 30].

Canada (Minister of Citizenship and Immigration) v. Ahmad (2014), 464 F.T.R. 107; 2014 FC 898, refd to. [para. 30].

Canada (Minister of Citizenship and Immigration) v. Mahmoud (2009), 339 F.T.R. 273; 2009 FC 57, refd to. [para. 31].

Canada (Minister of Citizenship and Immigration) v. Wong, [2009] F.T.R. Uned. 651; 2009 FC 1085, refd to. [para. 31].

Korolove v. Canada (Minister of Citizenship and Immigration) (2013), 430 F.T.R. 283; 2013 FC 370, refd to. [para. 36].

Canada (Minister of Citizenship and Immigration) v. Elzubair, [2010] F.T.R. Uned. 176; 2010 FC 298, refd to. [para. 40].

Canada (Minister of Citizenship and Immigration) v. El Bousserghini (2012), 408 F.T.R. 9; 2012 FC 88, refd to. [para. 40].

Canada (Minister of Citizenship and Immigration) v. Dhaliwal, [2008] F.T.R. Uned. 554; 168 A.C.W.S.(3d) 710; 2008 FC 797, refd to. [para. 40].

Abbas v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 83; 2011 FC 145, refd to. [para. 40].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 40].

Counsel:

Suran Bhattacharyya and Alexandra Lipska, for the applicant;

Shoshana T. Green, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the applicant;

Green and Spiegel LLP, Toronto, Ontario, for the respondent.

These appeals were heard at Toronto, Ontario, on November 13, 2014, before LeBlanc, J., of the Federal Court, who delivered the following judgment and reasons at Ottawa, Ontario, on May 22, 2015.